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Proposed WSIB changes will hurt workers, advocates say

William Harris was injured on the job as a Great Lakes shipper in 2010. (LAURIE MONSEBRAATEN / TORONTO STAR)

By Staff Reporter

Wed., May 7, 2014

William Harris never missed a day of work until his accident on Nov. 23, 2010.

The burly Great Lakes shipper was opening an 18-tonne hatch to load gravel destined for St. Mary’s Cement in Detroit when a faulty hinge sprung open unexpectedly.

“I was propelled into the air like a lawn dart. I felt every vertebra in my back go pop, pop, pop, pop,” he recalls. “I haven’t been the same since.”

Under Ontario’s 100-year-old no-fault workplace insurance program administered by the Workplace Safety and Insurance Board (WSIB), the cost of Harris’s physiotherapy, prescription drugs and other medical treatment was covered. He also received income support for his lost wages.

But every time he tried to return to work, he hurt his back again. And after his last injury, in October 2012, WSIB stopped paying. The insurance board said x-rays of Harris’s back showed evidence of degenerative discs, a pre-existing condition that disqualifies him from further payments.

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Workers’ advocates charge that hundreds of injured workers have, like Harris, been denied benefits for pre-existing medical conditions since 2010, when the former Dalton McGuinty government appointed David Marshall as WSIB president.

They blame Marshall’s marching orders “to reduce and ultimately retire” the board’s $12 billion unfunded liability, the difference between current funding levels and long-term payouts to injured workers. They say this financial imperative is behind a proposed new WSIB policy on pre-existing conditions that would “fundamentally change” the system and throw thousands of injured workers into poverty.

The WSIB counters that Ontario is the only jurisdiction in Canada without a policy on pre-existing conditions, and that workers’ advocates themselves requested the clarification. The board flatly denies that money has anything to do with the change.

The proposed policy “is under consideration given the need for consistency in decision making, not for financial reasons,” board spokeswoman Christine Arnott wrote in an email.

Harris, 40, is fighting the board’s decision. His lawyer says he will most likely win because the Workplace Safety and Insurance Appeal Tribunal follows the so-called “thin skull doctrine,” a common-law principle enshrined in the Workplace Safety and Insurance Act.

The legal principle, well-tested in personal-injuries litigation, states that “you take your victim as you find him/her.” In the workplace, this means that compensation for a injury is not discounted due to any pre-existing condition the worker may have.

The WSIB appeals tribunal has typically interpreted this to mean that if a pre-existing condition wasn’t interfering with the employee’s work before the injury, then it doesn’t negatively affect the amount or duration of compensation an employee is entitled to after an injury.

But the proposed WSIB policy revision would instruct the appeals tribunal to take a much narrower view, say workers’ advocates who are urging against the change.

Advocates acknowledge they raised the issue during an earlier consultation, but not because they saw a policy gap. They raised it because they noticed the board was denying more people like Harris, and they wanted to know what was going on. They argue the WSIB already has a policy on pre-existing conditions spelled out in a document known as the “Second Injury and Enhancement Fund,” and that nothing should be changed.

“This is a seismic shift in the approach to compensation,” says Marion Endicott, of Injured Workers Consultants, a Toronto legal aid clinic that advises the government on policy and helps injured workers with WSIB claims and appeals.

“The draft policies are evidence of the WSIB’s institutional bias in favour of reducing costs, and they are inconsistent with the law,” the clinic says in its response to the proposed changes.

If they are adopted, injured workers will qualify for short-term claims, but long-term compensation will disappear, Endicott predicts.

As people age, degenerative changes in knees, necks and backs are common, Endicott notes. Under the proposed policy, the WSIB will be able to point to those changes in injured workers — that often show up on x-rays but don’t cause pain or limit ability to work — and deny any long-term claim, arguing the worker had a pre-existing condition, she says.

Based on the appeals her office is seeing, the WSIB is already applying the policy “illegally,” she adds.

“This is a direct contravention of your government concern about poverty reduction and the historic compromise, in which workers gave up their right to sue in return for fair and just compensation (funded by employers) for as long as the disability lasts,” the letter says.

The WSIB stresses that recent cost improvements in the system are not being made on the backs of injured workers, but “due to improved safety in workplaces resulting in fewer injury claims” and “better medical care and assistance for injured workers returning to work,” Arnott writes in the email.

This is no comfort to injured Burlington worker Richard Renzella, 50, who used to earn as much as $60,000 a year repairing electrical transformers for industrial clients such as Ontario Hydro. He is literally a living example of how the WSIB is ignoring the “thin skull doctrine,” advocates say.

Renzella was injured in 2002 when he fell about five metres inside a transformer tank and struck his head, leaving him permanently injured and unable to work.

The WSIB awarded him a non-economic loss award for cognitive impairment, which it discounted by 25 per cent for a pre-existing condition because Renzella’s medical file showed he was hit in the eye by a tennis ball when he was a child.

But as his lawyer, Laura Lunansky, notes, Renzella did not have a pre-existing impairment or even a pre-existing condition before the fall. “He was perfectly fine before the accident,” she says.

Since the impact of head injuries can be cumulative, Renzella’s work injury may have been more severe as a result of his childhood accident, Lunansky acknowledges. The key, however, is that if he hadn’t been injured on the job, Renzella would not have any cognitive impairment today.

Instead, Renzella, who suffers memory loss as well as permanent physical injuries from the accident, is barely surviving on WSIB payments of less than minimum wage. He uses food banks to make ends meet and worries about losing his condo as fees and property taxes rise.

“I tell everyone I meet to be careful at work,” he says. “Because if you get injured, WSIB won’t pay you.”

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